Ex-Upper Big Branch security director found guilty

BECKLEY, W.Va. -- Massey Energy's security director at the Upper Big Branch Mine was found guilty Wednesday of lying to federal agents and attempting to destroy evidence in the investigation of the April 2010 explosion that killed 29 miners.

A 12-person jury returned its verdict after nearly six hours of deliberations in the case of Hughie Elbert Stover, a former Raleigh County deputy and longtime security director at Upper Big Branch.

Stover now faces up to 25 years in prison for two felony counts of making a false statement and trying to cover up records in a federal investigation.

Both charges focused on Stover's involvement in what prosecutors say was a widespread practice at Upper Big Branch of security guards helping to warn underground workers when government safety inspectors arrived.

U.S. District Judge Irene C. Berger scheduled sentencing for Feb. 29.

"This will send a very clear message that this is way too important an investigation to obstruct," U.S. Attorney Booth Goodwin said in a press conference outside the federal courthouse here. "We need to get to the bottom of what circumstances led to this explosion and who was responsible."

Stover left the courthouse without speaking to the news media, accompanied by family members and other supporters who partly filled one side of the courtroom for much of the two days of testimony.

Defense lawyer Bill Wilmoth said that Stover is "strongly considering an appeal."

"We're all obviously very disappointed with the verdict," Wilmoth said.

Wilmoth had argued in his closing statement that Stover was little more than a scapegoat "in the land of government gotcha."

"We're no closer to finding the real villain or villains in that disaster," Wilmoth said.

"They couldn't get you some executive who cut corners or shaved expenses," said Wilmoth, a former U.S. Attorney. "Instead, this is who they brought you -- a man who accidentally threw away some documents without thinking."

Stover is the second person convicted in what government officials have described as a massive and widespread criminal probe of the worst U.S. coal-mining disaster in nearly 40 years.

Last month, Berger sentenced former Upper Big Branch miner Thomas Harrah to 10 months in jail. Harrah pleaded guilty to faking a foreman's license when he performed key mine safety examinations at the mine between January 2008 and August 2009 and to then lying to investigators about his actions.

An independent investigation, a union probe and preliminary findings of the U.S. Mine Safety and Health Administration have blamed the explosion on Massey's failure to maintain mining equipment, provide adequate underground ventilation and properly clean up explosive coal dust from mine tunnels.

During closing statements Wednesday morning, Assistant U.S. Attorney Blaire Malkin said the evidence clearly showed Stover falsely told investigators that his guards did not announce the arrival of government inspectors at the mine. Malkin said Stover then directed a subordinate to destroy documents that would reveal his lie.

"This wasn't just a small white lie," Malkin told jurors.

Investigators began exploring the inspection warnings after families of several miners killed at Upper Big Branch described the practice in some detail during a congressional field hearing in Beckley just weeks after the disaster.

Providing advance notice of inspections is a crime, but is currently only a misdemeanor, carrying a maximum penalty of six months in jail.

During trial, four of Stover's security guards testified that they were trained to announce inspectors' arrival over a radio channel audible in the Upper Big Branch Mine office. Two dispatchers testified that they were routinely instructed to relay those announcements to workers underground.

"This was standard operating procedure," testified guard Tommy Wingo. "We would announce their last name and the department they are with and that they were on the property."

Tim Watkins, an MSHA district manager, said such warnings interfere with his agency's work policing mine safety and health.

"If they get notification ahead of time, there would be an opportunity to make changes and the inspectors would not be seeing the condition the mines are actually in," Watkins told jurors.

But when Stover was interviewed by investigators -- who had already talked to several of his guards -- he said that Massey's policy and practice was never to announce inspections.

"One thing that is hammered into our head, you do not ask inspectors where they're going and you do not call the mines," Stover told investigators in a Nov. 30, 2010, interview. "You do not notify anyone when inspectors come on the property."

At trial, Stover's defense was that the law on advance notifications of inspections was vague, and that Massey lawyers approved the radio announcements, as long as all visitors -- and not just inspectors -- were announced.

But Malkin said that as investigators focused more on the issue, Stover began to "feel the heat" and in early January 2011 instructed one of his guards, Jonathan Williams, to dispose of thousands of pages of security logs, incident reports and other documents that could shed light on Massey's policies and practices.

Williams, testifying under an immunity deal with the government, said that Stover told him to get rid of boxes of files stored in a makeshift warehouse in an old house across W.Va. 3 from the mine site.

"He said to take it out and put it in trash bags," said Williams, who performed the task working overtime at 6 a.m. after an overnight shift. "He said to throw all the old paperwork in the Dumpster, the trash compactor."

Investigators learned what happened a few days later, when Williams testified before a federal grand jury. Government officials were able to retrieve the records before the Dumpster was emptied, and they found two reports indicating previous warnings from inspectors about advance notifications.

Wilmoth said that Stover didn't realize he was doing anything wrong, and was just trying to clean out old records from a crowded storage area. Stover, testifying in his own defense, called his instructions to Williams "the stupidest mistake I've ever made in my life."

During his closing, Wilmoth reminded jurors that MSHA and other government agencies have been criticized for not preventing the mine explosion.

"Someone has to take the heat off MSHA and off our government, and Elbert is their guy," Wilmoth said.

Assistant U.S. Attorney Larry Ellis responded that Wilmoth's comments were "simply a plea for sympathy" and urged the jury to not be taken in.

"Nobody has picked on some low-level guy," Ellis said. "He's the head of security. He controls the gates to this mine ... Cutting corners? He was telling them when the inspectors were there -- isn't that cutting corners?"

After the verdict came in, Goodwin declined to speculate on when -- or if -- more criminal charges would be filed related to the disaster.

"The investigation continues, so it's premature to say we haven't brought justice or we haven't gone after the real villains," Goodwin said.